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Full-Text Articles in Law

A New Report Of Entick V. Carrington (1765), Christian Burset, T. T. Arvind Jan 2022

A New Report Of Entick V. Carrington (1765), Christian Burset, T. T. Arvind

Journal Articles

The Supreme Court has described Entick v. Carrington (1765) as “the true and ultimate expression of constitutional law” for the Founding generation. For more than 250 years, judges and commentators have read that case for guidance about the rule of law, executive authority, and the original meaning of the Fourth and Fifth Amendments. But we have been reading a flawed version. This Article publishes, for the first time, a previously unknown manuscript report of Entick v. Carrington. We explain why this version is more reliable than other reports of the case, and how this new discovery challenges prevailing assumptions about …


Attribution And Other Conditions Of Lawful Countermeasures To Cyber Misconduct, Mary Ellen O'Connell Jan 2020

Attribution And Other Conditions Of Lawful Countermeasures To Cyber Misconduct, Mary Ellen O'Connell

Journal Articles

State cyber misconduct is on the rise, and it can be difficult to differentiate between malicious governmental cyber conduct and active cyber defense. Though some argue that cyberspace is a law-free zone, offensive cyberattacks are almost always unlawful regardless of their purpose. This Article contends that international law can provide for legal boundaries in cyberspace and analogizes cyber misconduct to government actions such as espionage. So long as conditions provided by international law (such as notice, necessity, and proportionality) are met, countermeasures to malicious cyber operations are generally lawful. Cases of urgency may be an exception to this general rule …


Administrative Change, Randy J. Kozel, Jeffrey Pojanowski Jan 2011

Administrative Change, Randy J. Kozel, Jeffrey Pojanowski

Journal Articles

Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative …


Stare Decisis As Judicial Doctrine, Randy J. Kozel Jan 2010

Stare Decisis As Judicial Doctrine, Randy J. Kozel

Journal Articles

Stare decisis has been called many things, among them a principle of policy, a series of prudential and pragmatic considerations, and simply the preferred course. Often overlooked is the fact that stare decisis is also a judicial doctrine, an analytical system used to guide the rules of decision for resolving concrete disputes that come before the courts.

This Article examines stare decisis as applied by the U.S. Supreme Court, our nation’s highest doctrinal authority. A review of the Court’s jurisprudence yields two principal lessons about the modern doctrine of stare decisis. First, the doctrine is comprised largely of malleable factors …


Liberty, Judicial Review, And The Rule Of Law At Guantanamo: A Battle Half Won, Doug Cassell Jan 2008

Liberty, Judicial Review, And The Rule Of Law At Guantanamo: A Battle Half Won, Doug Cassell

Journal Articles

In Boumediene v. Bush, 128 S. Ct. 2229 (2008), five members of the Supreme Court held that foreign prisoners at Guantanamo enjoy the constitutional privilege of habeas corpus; that their imprisonment had lasted too long for the Court to await completion of statutory review by lower courts of military tribunal findings that the prisoners were "enemy combatants"; and that the statutory judicial review was too deficient to substitute for the Great Writ.

Four Justices vigorously dissented. On the surface they differed on the history of the reach of the common law writ of habeas corpus, and on the procedural …


The Clergy Sexual Abuse Crisis And The Spirit Of Canon Law, John J. Coughlin Jan 2003

The Clergy Sexual Abuse Crisis And The Spirit Of Canon Law, John J. Coughlin

Journal Articles

Recent revelations of cases in which Catholic priests have sexually abused minors over the course of the last five decades have drawn intense media scrutiny and public outrage. But discipline of the clergy for sexual offenses is not novel in the history of the Catholic Church, and canonical structures have long been in place to address the problem. This Article argues that the recent crisis has resulted in part from a failure to respect and enforce the relevant provisions of canon law. If bishops had fulfilled their duty to abide by the rule of law, especially in the cases involving …


National Socialism And The Rule Of Law, Donald P. Kommers Jan 1992

National Socialism And The Rule Of Law, Donald P. Kommers

Journal Articles

Ingo Muller's book, originally published in 1987 as Furchtbare Juristen: Die unbewaltigte Vergangenheit unserer Justiz (literally "Dreadful Jurists: The Remorseless Past of Our Judiciary"), describes the moral collapse of the German legal profession and its role in facilitating the construction and maintenance of the Nazi regime. Gracefully translated by Deborah Lucas Schneider, Hitler's Justice seeks, first, to show how legal professionals betrayed their trust as lawyers, prosecutors, and judges and, second, to assess the degree to which Germany in the postwar period reformed its legal system, purged the judiciary of former Nazis, and rededicated itself to the rule of law. …